White House Issues Two Holiday Statements

The White House this morning issued two holiday statements. It announced (full text) the theme and activities for for the 2022 Easter Egg Roll to be held on April 18, saying in part:

The White House announced today the full program of activities for the 2022 White House Easter Egg Roll, a tradition dating back to 1878.  A teacher for more than 30 years, First Lady Jill Biden created this year’s event theme, “EGGucation!,” with the South Lawn to be transformed into a school community, full of fun educational activities for children to enjoy.

President Biden also issued a Statement on Passover (full text), saying in part:

This Passover, we hold in our hearts the people of Ukraine and those around the world whose heroic stand against tyranny inspires us all. The enduring spirit of this holiday continues to teach us that with faith, the driest desert can be crossed, the mightiest sea can be split, and hope never stops marching towards the promised land. 

Second Gentleman Emhoff Is At Center Of White House Passover Celebrations

The Jewish festival of Passover begins at sundown this evening. Yesterday, the White House held a virtual Seder which was streamed live and is available on YouTube. Labelled "The People's Seder," Jewish Americans from around the country spoke or made presentations.  The Seder was hosted by Second Gentleman Doug Emhoff and was emceed by Chanan Y. Weissman, the White House’s liaison to the Jewish community. Tonight, Vice President Harris and Emhoff, who is Jewish, will host a Seder at the Vice President's official residence. According to CNN:

Harris told Israeli President Isaac Herzog during their phone call Thursday that she would hold a Seder in person at the Naval Observatory, according to a White House official.

The official said Harris and Emhoff will be joined by Jewish members of their staff and their loved ones.

$400,000 Settlement In Favor Of Prof Who Refused To Recognize Student's Gender Transition

After the U.S. 6th Circuit Court of Appeals in 2021 held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that Professor Nick Meriwether address a transgender student by her preferred gender pronoun, a settlement has been reached in the case. According to a press release from ADF, the university agreed to pay $400,000 in damages plus attorneys' fees. Also, according to the press release:

As part of the settlement, the university has agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students. Significantly, the university agreed Meriwether will never be mandated to use pronouns, including if a student requests pronouns that conflict with his or her biological sex.

A stipulation of voluntary dismissal was filed yesterday in Meriwether v. Trustees of Shawnee State University, (SD OH filed 4/14/2022).

Kentucky Legislature Overrides Veto Of Ban On Transgender Girls On Middle and High School Girl's Teams

Last week, Kentucky Governor Andy Beshear vetoed (veto message) SB 83 (full text) which bars transgender girls in grades 6 though 12 from competing on girls' athletic teams or activities in Kentucky public schools. As reported by the Courier Journal, yesterday the Kentucky legislature overrode the governor's veto.

State Department Issues 2021 Report On Human Rights Practices Around The World

On Tuesday, the State Department released the 2021 Country Reports on Human Rights Practices. This year's reports cover 198 countries and territories. While these reports include information on the status of religious freedom in the countries surveyed, the State Department also issues a report each year focused specifically in International Religious Freedom. The 2021 Report on International Religious Freedom will be issued later this year.

Sikhs Sue Marine Corps For Religious Accommodation

On Monday, suit was filed against the Marine Corps and the Defense Department by four Sikh recruits who are seeking an accommodation that would allow them to wear religious beards and turbans while serving in the Marines. The complaint (full text) in Toor v. Berger, (D DC, filed 4/11/2022), claims that the Marine Corps treatment of plaintiffs violates their rights under RFRA as well as the 1st and 5th Amendments. The Sikh Coalition issued a press release announcing the filing of the lawsuit.

Plaintiff's Ban From Space Center Upheld

In Duvall v. United States Space and Rocket Center, (ND AL, April 11, 2022) an Alabama federal district court dismissed claims that plaintiff's free exercise, free speech and freedom of assembly rights were violated when he was banned from the Space Center's property. The ban was imposed after plaintiff was trying at the Center "to bust open Seal No. 7 of the Holy Bible.”

New Alabama Ban On Gender Transition Procedures For Minors Is Challenged

Suit was filed last week in an Alabama federal district court challenging SB 184, the Alabama Vulnerable Child Compassion and Protection Act (full text), which prohibits medical procedures or the prescription of drugs for a minor child to alter the child's gender or delay puberty. The law was given final passage by the legislature on April 7 and signed by the governor on the next day. Parents of two transgender teenagers and two physicians filed suit 3 days later. The complaint (full text) in Ladinsky v. Ivey, (ND AL, filed 4/11/2022), contends that the law is pre-empted by a provision in the Affordable Care Act, that the law violates equal protection, parents rights to direct medical care of their children, and is void for vagueness. Courthouse News Service reports on the lawsuit.

Recent Articles of Interest

 From SSRN:

• Scott D. Gerber, Liberal Originalism in Connecticut Constitutional Interpretation, (Quinnipiac Law Review, Forthcoming).
• Marc Spindelman, Dobbs' Dilemma (Why Justice Brett Kavanaugh's Ideal of 'Scrupulous Neutrality' in Dobbs is a Pipe Dream), (National Law Journal (March 31, 2022)).
• Alexander Gouzoules, Clouded Precedent: Tandon v. Newsom and its Implications for the Shadow Docket, (Buffalo Law Review Vol. 70, No. 87 (2022)).
• Damonta Morgan & Austin Piatt, Making Sense of the Ministerial Exception in the Era of Bostock, (University of Illinois Law Review, Vol. 2022, No. 26, 2022).
• Jennifer Levi & Kevin M. Barry, Transgender Rights & the Eighth Amendment, (Southern California Law Review, Vol. 95, No. 109, 2021).
• Yvonne Lindgren, The Fathers’ Veto and Fatherhood As Property, (February 24, 2022).

From SSRN (Non-U.S. Law):

• Destiny Aisekhaghe, ‘The Right to Freedom of Marriage and the Constitutionality of the Prohibition of Same Sex Marriage in Nigeria’: Another View, (February 27, 2022).
• Nehaluddin Ahmad & Norulaziemah binti Haji Zulkiffle, Discriminatory Policies and Laws Target Indian Muslim Minorities in the Recent Time: A Socio-Legal Study, (Law and Humanities Quarterly Reviews, Vol.1 No.2 (2022)).
• Yifat Bitton & Tamar Kricheli Katz, Disparities on the Basis of Nationality, Ethnicity and Gender in Road Accident Compensation in Israel, (Journal of Law and Courts 2022).
• David Gilchrist, Better Financial Reporting for Australian NFPs, (March 2, 2022).

Deputy Sheriff May Be Liable For Failing To Stop Fellow Officer From Carrying Out Coercive Baptism

In Riley v. Hamilton County Government, (ED TN, April 7, 2022), a Tennessee federal district court refused to dismiss an Establishment Clause, as well as a 4th Amendment, claim against Deputy Sheriff Jacob Goforth for his role in Deputy Sheriff Daniel Wilkey's baptism of Shandle Riley. Wilkey had pulled Riley over for a traffic stop and discovered that she had marijuana in her car. After searching Riley and her car, Wilkey began to talk with Riley about religion, asking her if she had been baptized. According to the court:

Wilkey told her “God [was] talking to him” and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business.... According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed.... Riley decided to go along with this plan because she“[did not] want to go to jail.” ... She also “thought [Wilkey] was a God-fearing, church-like man who saw something . . . in [her], that God talked to him,” and testified that “it felt good to believe that for a minute.”

Wilkey asked another deputy on duty, Jacob Goforth, to witness his baptism of Riley. According to the court: 

any reasonable officer would have recognized that coerced participation in a Christian baptism—an overtly religious act with no secular purpose—was unlawful.... There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue....

Goforth had fair warning that he had a duty to intervene to stop constitutional violations of this nature. And a reasonable jury could conclude that Goforth had both notice of the violation and an opportunity to stop the baptism. Accordingly, Goforth is not entitled to summary judgment on Riley’s First Amendment claim....

The court also held that that Goforth was not entitled to qualified immunity on Riley's claim of an unreasonable seizure.

5th Circuit Hears Oral Arguments In Texas Courtroom Prayer Case

On Tuesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. (Audio of full oral arguments). In the case, a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.)  Last July, the 5th Circuit granted a stay pending appeal of the Texas district court's declaratory judgment order. (See prior posting.)

Oklahoma Passes Bill Outlawing Almost All Abortions

On Wednesday, the Oklahoma legislature sent to the governor for his signature, SB612 (full text). The bill provides in part:

1. Notwithstanding any other provision of law, a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.

2. A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed... $100,000.00 ... or by confinement ... for a term not to exceed ten ... years, or by such fine and imprisonment.

3.  This section does not: a. authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child....

NPR reports on the legislation.

Alabama Legislature Passes Bill On Bathrooms and LGBT Instruction In Public Schools

Yesterday the Alabama legislature gave final passage to, and sent to the governor for her signature, HB322 (full text). The bill, with certain exceptions, requires:

A public K-12 school shall require every multiple occupancy restroom or changing area designated for student use to be used by individuals based on their biological sex.

The bill also provides:

... [I]ndividuals providing classroom instruction to students in kindergarten through the fifth grade at a public K-12 school shall not engage in classroom discussion or provide classroom instruction regarding sexual orientation or gender identity in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

Two Suits Challenge Michigan's 1931 Abortion Ban

Planned Parenthood and a Michigan abortion provider filed suit yesterday in the Michigan Court of Claims seeking to invalidate Michigan's 1931 statute that outlaws all abortions, except those necessary to save the life of the pregnant woman.  The complaint (full text) in Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (Ct.Cl., filed April 7, 2022), contends that the statute violates various provisions of the Michigan Constitution.  ACLU issued a press release announcing the lawsuit. Even though Attorney General Dana Nessel is named as defendant in the lawsuit, she issued a statement saying in part:

I will not use the resources of my office to defend Michigan's 1931 statute criminalizing abortion.

WMUK expands on Nessel's position:

She says her office would not defend the abortion ban using a process that assigns teams of attorneys to argue both sides of a legal controversy. Nessel says she would only do that if ordered to by a court. “I will not enforce it and neither will I defend it,” she said. “I will take no part in driving women back into the dark ages and into the back alleys.”

Nessel says she will leave it up local prosecutors to defend their ability to enforce an abortion ban in their counties if they want to do that. And the Democratic attorney general says she would not object if Republicans in the Legislature want to join the case and take on the role of defending the state’s abortion ban.

Meanwhile, yesterday Michigan Governor Gretchen Whitmer filed another lawsuit challenging the 1931 abortion ban. A press release from her office, describing the lawsuit, says in part:

Today, Governor Gretchen Whitmer filed a lawsuit and used her executive authority to ask the Michigan Supreme Court to immediately resolve whether Michigan’s Constitution protects the right to abortion....

The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution.  It also asks the court to stop enforcement of the 1931 Michigan abortion ban. The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.

Seventh Day Adventist Can Proceed With Title VII Suit

In Weston v. Sears, (SD OH, April 5, 2022), an Ohio federal magistrate judge recommended that plaintiff, a Seventh Day Adventist, be permitted to proceed in forma pauperis with her Title VII claim for religious discrimination.  She was fired for failing, until after the end of her Sabbath, to return multiple phone calls from her manager. However plaintiff is required to exhaust her administrative remedies by filing charges with the EEOC or her state agency.

European Court Says Jehovah's Witnesses Were Wrongly Denied Tax Exemption

In Affaire Assemblée chrétienne des Témoins de Jéhovah d’Anderlecht et autres c. Belgique, (ECHR, April 5, 2022), the European Court of Human Rights ruled in favor of a Jehovah's Witnesses congregation in Belgium that was denied a property tax exemption for property they used for religious worship. The regional tax law gave exemptions only to "recognized religions".  Jehovah's Witnesses were not recognized. According to the Court's press release:

The Court held that since the tax exemption in question was contingent on prior recognition, governed by rules that did not afford sufficient safeguards against discrimination, the difference in treatment to which the applicant congregations had been subjected had no reasonable and objective justification. It noted, among other points, that recognition was only possible on the initiative of the Minister of Justice and depended thereafter on the purely discretionary decision of the legislature. A system of this kind entailed an inherent risk of arbitrariness, and religious communities could not reasonably be expected, in order to claim entitlement to the tax exemption in issue, to submit to a process that was not based on minimum guarantees of fairness and did not guarantee an objective assessment of their claims.

Preacher's Challenge To Large Group Vigils On Capitol Grounds Fails

In Mahoney v. United States Capitol Police Board, (D DC, April 5, 2022), a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds.  Groups of 20 or more were permitted at that location only if sponsored by a member of Congress. The court rejected plaintiff's selective enforcement claim, saying in part:

Members of Congress sponsoring or organizing demonstrations on the Capitol Grounds present “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.”...  Consider the numerous ways in which Members are different from non-Members while on the Capitol Grounds. In such a setting, for instance, the Member is at her workplace, she enjoys private access to many areas that are otherwise restricted, and she is carrying out her unique constitutional duties as a legislator and representative of her constituents. Numerous legal principles recognize this reality and accord Members unique status while on the Capitol Grounds.

The court also found that plaintiff was unlikely to succeed on his freedom of assembly claim. 

Biden Nominates Kalpana Kotagal For EEOC Commissioner

President Biden yesterday sent to the Senate the nomination of  Kalpana Kotagal to be a Member of the 5-member Equal Employment Opportunity, replacing Janet Dhillon whose term is expiring July 1. Kotagal is a partner at Washington, D.C. law firm of Cohen Milstein and is a member of the firm’s Civil Rights & Employment practice group. The EEOC enforces employment discrimination laws, including laws barring religious discrimination in employment.

Kentucky Governor Signs Bill Protecting Houses Of Worship During Emergencies

Yesterday, Kentucky Governor Andy Beshear signed into law House Bill 43 (full text) that prohibits the governor, during a state of emergency, from seizing or condemning "houses of worship, except to the extent that such houses have become unsafe to a degree that would justify condemnation in the absence of a state of emergency." ADF issued a press release announcing the governor's action.

Arizona Legislature Passes Bill To Protect Practices Of Faith-Based Adoption Agencies

On Monday, the Arizona legislature sent to the governor for his signature Senate Bill 1399 (full text) which protects adoption and foster care agencies from adverse action when they provide or decline services on the basis of their religious beliefs. It also provides that the state may consider whether a potential foster or adoptive family shares the same religious beliefs or practices as the child being placed. AZ Mirror has extensive reporting on the views of proponents and opponents of the legislation.

Colorado Governor Signs Reproductive Health Equity Act

 On Monday, Colorado Governor Jared Polis signed into law (signing statement) HB 22-1279 (full text), the Reproductive Health Equity Act which provides in part:

(1) Every individual has a fundamental right to make decisions about the individual's reproductive health care, including the fundamental right to use or refuse contraception.

(2) A pregnant individual has a fundamental right to continue pregnancy and give birth or to have an abortion and make decisions how to exercise that right.

(3) A fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of this state.

CNN reports on developments.

Massachusetts Supreme Court Hears Oral Arguments In Clergy Sexual Abuse Case

Yesterday, the Massachusetts Supreme Judicial Court heard oral arguments (webcast of arguments) in Doe v. Roman Catholic Bishop of Springfield. (Docket entries and documents.) The court's summary of the issues involved reads:

Where the trial court denied the defendant's motion to dismiss an action alleging sexual abuse by clergy, whether the defendant may pursue an interlocutory appeal of a ruling that neither charitable immunity nor the First Amendment provides a basis to dismiss the plaintiff's claims.

Courthouse News Service has a lengthy summary of the oral arguments.

Another Court Gives Relief To Military Objectors To COVID Vaccine

Last week, an Ohio federal district court became the latest to grant a preliminary injunction to members of the military who have religious objections to the military's COVID vaccine mandate. In Doster v. Kendall, (SD OH, March 31, 2022), the court said in part:

The Court finds the targeted relief Plaintiffs now seek is "a prohibition against disciplinary or separation measures to these Plaintiffs under RFRA," and thus the Court grants a preliminary injunction of such scope, enjoining Defendants from taking any adverse or punitive action, including but not limited to disciplinary or separation measures, against the Plaintiffs in this case for their refusal to receive the COVID-19 vaccine, while keeping in place the current temporary exemption. 

The Court's conclusion is not affected by the Supreme Court's recent decision in Austin v. U.S. Navy Seals 1-26, 2022 WL 882559, or Justice Kavanaugh' s concurrence which cautions against intervention in the military' s chain of command. That case is distinguishable from the present one, and this Court's injunction. As set forth below, the injunction in this case is limited to solely these Plaintiffs and only maintains the status quo by maintaining the current temporary exemptions and prohibiting adverse or punitive action against those Plaintiffs for their refusal to receive the COVID-19 vaccine. It does not affect the Air Force's ability to make operational decisions, including deployability decisions.

Liberty Counsel issued a press release announcing the decision.

Trial Court's Resolution Of Church Factional Dispute Is Upheld

In Chung v. Kim, (CA App., April 1, 2022), a California state appellate court held that a trial court did not abuse its discretion in dealing with a dispute between two factions in a Korean American church.  The court expalined:

Appellant Jang Geun Chung is an “Active Elder” at OMC and the leader of one faction, and OMC’s Senior Pastor, respondent Chi Hoon Kim, is the leader of the other faction. Prior to the initiation of the trial court proceedings, these individuals were the only two members of OMC’s “Session,” or board of directors. Chung and the Senior Pastor do not agree on whom to nominate as another Active Elder on the Session. Had Chung and the Senior Pastor concurred on the selection of one or more nominees, then any candidate receiving a vote of two-thirds or more of OMC’s congregation would have been elected to the Active Elder position and ultimately would have joined the Session.

Chung and the other members of his faction ... filed suit against the Senior Pastor and the two other members of his faction....  The trial court granted appellants’ motion, reasoning that the Senior Pastor had acted improperly in unilaterally selecting the candidates and scheduling the election. The court then ... ordered that a new election be held....  Appellants contest the trial court’s order adopting respondents’ proposed procedures for the new election....

The court rejected the argument that the trial court's order violated the Establishment Clause, saying in part:

Even assuming the eligibility determination for the Active Elder position calls for the resolution of an ecclesiastical matter, the trial court could not defer to a decision from the relevant authoritative ecclesiastical body—i.e., the Session. Specifically, the parties concede that because the Senior Pastor and Chung were unable to agree on nominees for this position (i.e., no candidate could “receive[ ] a vote of 2/3 or more” of the Session, as required by Art. 51(3)), the Session is “deadlocked” on this issue....  Appellants do not cite authority for the proposition that the Establishment Clause barred the trial court from resolving this impasse by allowing each member of the deadlocked authoritative ecclesiastical body to select his own candidate for the election.

Recent Articles of Interest

From SSRN:

• Christian Edmonds, The Religious Underpinnings of the Fourth Amendment, (Texas Review of Law & Politics, Vol. 25, No. 2, 2021).
• Uta Kohl, Platform Regulation of Hate Speech – A Transatlantic Speech Compromise?, (Forthcoming in the Journal of Media Law (2022)).
• David Abraham, Paradigm Lost: From Two-State Solution to One State Reality by Ian Lustick, Philadelphia, University of Pennsylvania Press, 2019, (Book Review), (Ethnic and Racial Studies 44:3, pp. 448-451, (2021)).
• Jean-Marie Kamatali, 'Hate Speech' in America: Is It Really Protected?, (Washburn Law Journal, Vol. 61, No. 1, 2021).
• Jacob Breemer, The Role of Sharia Banking for Small and Medium Micro Enterprises (MSMEs) in Kendari City, (Microdata Journal Economics and Management, Vol 4, No. 2, January - March 2022).
• Warto Ahmad Saifuddin, Exploring the Roots of the Philosophy of Legal Reasons for Haram Material, (February 10, 2022).
• Luciano Floridi, How to Counter Moral Evil: Paideia and Nomos,  (Philosophy & Technology, March 2022).

From SmartCILP:

• Emilia Justyna Powell, Comparative International Law and the Social Science Approach, 22 Chicago Journal of International Law 147-155 (2021).

Ban On Prayer Over PA System At High School Playoffs Did Not Violate 1st Amendment

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (MD FL, March 31, 2022), in a case on remand from the 11th Circuit, a Florida federal district court held that the Florida High School Athletic Association did not violate the 1st Amendment rights of a Christian school when it refused to allow it to broadcast a pre-game prayer over the PA system at a state championship playoff against another Christian school. The court said in part:

This case is not about whether two Christian schools may pray together at a football game....  [P]layers and coaches from both teams, along with some officials, met at the 50-yard line of the Citrus Bowl to pray together before the game and again on the sidelines after the game.... But they were not permitted to deliver their prayer over the PA system during the pregame....

Addressing plaintiff's free speech claims, the court said in part:

[P]regame speech over the PA system at the championship finals football game hosted by the FHSAA at a state-owned venue is government speech....

Even if some of the speech conducted over the PA system at the 2015 2A State Championship Final football game could be classified as private speech, the FHSAA’s viewpoint neutral regulation of the speech in the nonpublic forum was not unconstitutional....

Here, no one else was permitted to speak over the PA system during the pregame except the announcer, and pursuant to a predetermined script, which did not include speech and viewpoints of other groups, organizations, or religions....

Also, rejecting free exercise claims, the court said in part: 

On the facts of this case, the Court concludes that communal pregame prayer over the PA system is a preference of CCS’s, not a deeply rooted tradition that rises to the level of a sincerely held belief.

Lev Tahor Leaders Sentenced To Prison

The U.S. Attorney's Office for the Southern District of New York announced last Thursday that two leaders of extremist Jewish sect Lev Tahor have been sentenced to 12 years in prison, followed by 5 years of supervised release, for child sexual exploitation offenses and kidnapping.  According to the announcement:

In or about 2017, [NACHMAN] HELBRANS arranged for his then-12-year-old niece, Minor-1, to be “married” to a then-18-year-old man.  Though they were never legally married, they were religiously “married” the following year, when Minor-1 was 13 and her “husband” was 19.  Lev Tahor leadership, including HELBRANS and [MAYER] ROSNER, required young brides ... to have sex with their husbands, to tell people outside Lev Tahor that they were not married, and to lie about their ages....

After [Minor-1's] mother fled and settled in New York with her children, HELBRANS and ROSNER devised a plan to kidnap Minor-1, then 14 years old, to return her to Guatemala and to her then-20-year-old “husband.”  In December 2018, they kidnapped Minor-1 and her brother in the middle of the night from a home in upstate New York and transported them through various states and, eventually, to Mexico.... At the time of the kidnapping, Lev Tahor leadership was seeking asylum for the entire Lev Tahor community in the Islamic Republic of Iran.

Times of Israel reports on the sentencing.

NY AG Orders Anti-Muslim Group To Stop Spying On The Muslim Community

 In an April 1 press release, New York Attorney General Letitia James announced that the office's Civil Right Bureau has sent a Cease and Desist Notification (full text) to an "anti-Muslim hate group" warning it to stop its discriminatory surveillance of the Muslim community. The Notification says in part:

The New York State Office of the Attorney General (OAG) has reviewed reports alleging that your organization, the Investigative Project on Terrorism (IPT), used paid informants and infiltrators to spy on Muslim houses of worship, Muslim advocacy groups, and prominent Muslim leaders. You are advised that such conduct could violate the New York Civil Rights Law and other state and federal laws. You are hereby instructed to cease and desist any ongoing or contemplated unlawful espionage operations against Muslims and Muslim organizations within the State of New York. Discrimination has no place in New York. The OAG will use every tool at its disposal to protect Muslim New Yorkers against unlawful intimidation campaigns.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Pew Survey On Attitudes Toward Religious Exemption Claims To Vaccine Mandates

Yesterday the Pew Research Center released the results of its American Trends Panel survey on attitudes toward COVID-19 mandates and claims of religious objections to vaccines. A release titled Americans skeptical about religious objections to COVID-19 vaccines, but oppose employer mandates reads in part:

Two-thirds of U.S. adults say most people who claim religious objections to a COVID-19 vaccine “are just using religion as an excuse to avoid the vaccine,” while about a third (31%) say they think the objectors “sincerely believe getting a COVID-19 vaccine is against their religion.”

At the same time, most Americans do not think those with religious objections to the COVID-19 vaccine – regardless of the sincerity of their beliefs – should lose their jobs. A majority of adults (65%) say employers that require coronavirus vaccinations should “allow employees who have religious objections to keep their jobs even if they decline to get the vaccine.” Around a third (32%) disagree....

White House Announces Initiatives To Support Transgender Americans

President Biden this week issued a Proclamation (full text) recognizing yesterday as "Transgender Day of Visibility." The Proclamation says in part:

To everyone celebrating Transgender Day of Visibility, I want you to know that your President sees you.  The First Lady, the Vice President, the Second Gentleman, and my entire Administration see you for who you are — made in the image of God and deserving of dignity, respect, and support....

In the past year, hundreds of anti-transgender bills in States were proposed across America, most of them targeting transgender kids.  The onslaught has continued this year.  These bills are wrong.  Efforts to criminalize supportive medical care for transgender kids, to ban transgender children from playing sports, and to outlaw discussing LGBTQI+ people in schools undermine their humanity and corrode our Nation’s values.

This was followed yesterday with the issuance by the White House of a lengthy Fact Sheet (full text) outlining the Administration's efforts to advance equality and visibility of transgender, non-binary and gender non-conforming Americans. Among the new initiatives announced are allowing "X" to be selected as a gender marker on passport applications and various other federal forms.  The Fact Sheet also says:

In recent months, multiple states have removed critical information about mental health resources for LGBTQI+ youth from official state websites. Transgender youth often face significant barriers in accessing supportive resources, and are at greater risk of attempted suicide. In response, the Department of Health and Human Services released a new website that offers resources for transgender and LGBTQI+ youth, their parents, and providers. These resources include best practices for affirming an LGBTQI+ child, and information about suicide prevention services.

Court Dismisses Unification Church Trademark Dispute On Ecclesiastical Abstention Grounds

In Holy Spirit Association for the Unification of World Christianity v. World Peace and Unification Sanctuary, Inc., (MD PA, March 30, 2022), a Pennsylvania federal district court dismissed on ecclesiastical abstention grounds a trademark dispute between the Unification Church (HSA), led by the late Rev. Sun Myung Moon's wife, and defendant Unification Sanctuary, an organization created by Rev. Sun Myung Moon's son to spread Rev. Moon's teachings. At issue is the right of Sanctuary to use the trademarked Twelve Gates symbol. The court said in part:

While it is undisputed that the Twelve Gates symbol is registered with the USPTO in HSA’s name, Sanctuary contends that the Twelve Gates symbol is not entitled to trademark protection because the symbol has become generic as a universal religious symbol that represents Unificationism generally....

[T]he implicit question raised ... is whether Sanctuary can be classified as a branch of the Unificationist church in light of the apparent fundamental disagreements between the parties relating to the beliefs and practice of this religion. Indeed, while Sanctuary classifies itself as a Unificationist church, HSA vehemently disputes this assertion.... [I]t is well-settled that the court cannot resolve church disputes on the basis of religious doctrine and practice....

HSA’s registration of the Twelve Gates symbol with the USPTO constitutes prima facie evidence that it owns this trademark right....  However, Sanctuary has contested HSA’s ownership on inherently religious grounds. Specifically, Sanctuary has alleged that Sean Moon is the owner of all Unificationist property as the heir of Rev. Moon, and that he therefore owns the trademark to the Twelve Gates symbol since he controls the Unificationist Church, and by extension, HSA as a branch of same.

Plainly, this is a dispute that the court cannot resolve without venturing into issues of church leadership or organization—an area in which the Southern District of New York and the Second Circuit have already determined is inappropriate in a similar dispute presented by the same parties.

Lipstadt Finally Confirmed As Special Envoy To Combat Antisemitism

Late yesterday, The U.S. Senate by voice vote confirmed Prof. Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador. The Forward reports on the Senate's action. Confirmation has been held up for months, largely because of concerns by Foreign Relations Committee member Ron Johnson about tweets from Lipstadt last March critical of him. (See prior posting.)

Arizona Governor Signs Bills On Transgender Issues And Abortion

As described in a press release from the Governor's office, yesterday Arizona Governor Doug Ducey signed the following bills into law:

Senate Bill 1138, sponsored by Sen. Warren Petersen, delays irreversible gender reassignment surgery until the age of 18. The bill does not prohibit puberty blocking hormones or any other hormone therapy and will not require any child to go off any prescriptions they may be taking....

The Governor also signed S.B. 1165, sponsored by Sen. Nancy Barto. This legislation requires all Arizona public schools, and any private schools that compete against them, to expressly designate their interscholastic athletics teams based on the biological sex of the participating students....

Continuing Arizona’s commitment to protecting preborn children, the Governor also signed S.B. 1164, sponsored by Sen. Nancy Barto. The bill prohibits a physician from performing an abortion past 15 weeks gestation, except in a medical emergency....

Women who received an abortion after 15 weeks may not be prosecuted.

NBC News reports on these developments.

No Title VII Violation In Denying Hospital Employee 7 Days Off For Jewish Holiday Observance

In Wagner v. Saint Joseph's/ Candler Health Systems, Inc., (SD GA, March 28, 2022), a Georgia federal district court held that a hospital did not violate Title VII when it fired an Orthodox Jewish admissions notification specialist for taking off four days, in addition to the three days that were approved, to observe the Fall Jewish holidays. The court said in part:

The evidence shows that, due to the unique nature of Wagner’s job, accommodating her request would have required her supervisors and fellow employees ... to perform Wagner’s job for seven days over a seventeen-workday period. The parties agree that Wagner’s job was “time-sensitive” and that there were financial ramifications for the Hospital if Wagner (or whoever was performing her job) failed to notify insurance companies of inpatient stays involving one of their insureds within twenty-four hours.... Wagner also concedes that if the Hospital were to have granted her seven days off to observe the October High Holidays, [fellow employees] ... would have had to bear an additional workload, which would have taken them away from their own jobs....

This evidence suggests that the Hospital would have—and ultimately did— endure more than a de minimis cost in order to accommodate Wagner’s request to miss seven days of work to observe the October High Holidays.

11th Circuit Grants Limited Stay Of Injunction Against Navy's Vaccine Mandate

In Navy SEAL 1 v. Secretary of the U.S. Department of Defense, (11th Cir., March 30, 2022), the U.S. 11th Circuit Court of Appeals granted a limited stay of a Florida district court's preliminary injunction granted to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate. The court allowed the Navy to consider the plaintiffs’ vaccination status in making deployment, assignment, and other operational decisions while appeals are pending. However the court refused to stay the injunction more broadly. Liberty Counsel issued a press release announcing the decision.

Ban On Proselytizing At City Farmers Market Violates Free Speech Rights

In Denton v. City of El Paso, (WD TX, March 29, 2022), a Texas federal magistrate judge concluded that plaintiff's free speech rights were violated by a policy of the city whose Museums and Cultural Affairs Department refused to allow Plaintiff to proselytize at the Downtown Art and Farmers Market.  The city's policy barred First Amendment expression and religious proselytizing within and during the Market. The magistrate judge recommended granting of nominal damages and injunctive relief.

European Court Says Refusal To Register Jehovah's Witnesses Violates ECHR

In Christian Religious Organization of Jehovah's Witnesses in the NKR v. Armenia, (ECHR, March 22, 2022), the European Court of Human Rights held that refusal by Nagorno Karabakh to register Jehovah's Witnesses as a religious organization amounts to a violation by Armenia of Article 9 of the European Convention on Human Rights. [Thanks to Law & Religion UK for the lead.]

District Court Issues Class-Wide Injunction To Navy SEALS Vaccine Objectors

 In U.S. Navy SEALs 1-26 v. Austin, (ND TX, March 28, 2022), a Texas federal district court granted a class-wide preliminary injunction to  4,095 Navy servicemembers who object on religious grounds to the Navy's COVID-19 vaccine mandate and have filed religious accommodation requests. The court also certified two sub-classes. However, the court immediately stayed the injunction "insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions." This decision expands the court's previous grant of a preliminary injunction to 35 individual plaintiffs into a class-wide injunction.  That order was stayed, pending appeal, by the Supreme Court, insofar as it barred the Navy from considering the COVID vaccination status of the service members in making deployment, assignment and operational decisions. (See prior posting.) Liberty Counsel issued a press release announcing the decision.

Certiorari Denied In Synagogue Picketing Case

Last week, the U.S. Supreme Court denied review in Brysk v. Herskovitz, (Docket No. 21-1024, certiorari denied 3/21/2022). (Order List). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting).

Recent Articles Of Interest

From SSRN:

• Michael Heise & Gregory C. Sisk, Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, (Cornell Legal Studies Research Paper Forthcoming).
• Adam McDuffie, The Problem with the Peace Cross: American Legion v American Humanist Association and the Power of Courts to Shape Societal Memory, (Religio et Lex 4:1 (Summer 2021): 5-18).
• Sahar F. Aziz, Different Name, Same Aim: Targeting Muslims in 'Soft Counterterrorism', (March 25, 2022).
• Steven J. Heyman, Transforming Natural Religion: An Essay on Religious Liberty and the Constitution, (Brigham Young University Law Review, Vol. 48, No. 4, Forthcoming 2023).
• Shiv Narayan Persaud, The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy, (Seattle Journal for Social Justice: Vol. 20 : Iss. 1 , Article 16 (2021).
• Bryan Lammon, Reforming Qualified-Immunity Appeals, (87 Missouri Law Review (Forthcoming 2023)).
• Kimberley Harris, How Do You Solve a Problem Like S.B. 8? Flagrantly Unconstitutional Laws, Procedural Scheming, and the Need for Pre-Enforcement Offensive Litigation, (Tennessee Law Review, Forthcoming).
• Priya Kamath, Outcast(e): The Case for Recognizing Caste Under U.S. Anti-Discrimination Law, (September 20, 2021).
• Dr. Sulaiman Lebbe Rifai, Islam and the West in Ali al- Namlah’s Reconciliatory Thought, (February 5, 2022).
• Peter Molk, Where Nonprofits Incorporate and Why It Matters,  (Iowa Law Review, Forthcoming 2023).

From SmartCILP:

• Cochav Elkayam-Levy, The Diversity of Womanhood and All of God's Creatures: Addressing Challenges in the Protection of Women's Religious Freedoms Using a Novel Classification, 53 Cornell International Law Journal 595-642 (2020).
• Emily Prifogle, Rural Social Safety Nets for Migrant Farmworkers in Michigan, 1942–1971, 46 Law & Social Inquiry 1022-1061 (2021).
• Lisa Harms, Claiming Religious Freedom at the European Court of Human Rights: Socio-Legal Field Effects on Legal Mobilization, [Abstract], 46 Law & Social Inquiry 1206-1235 (2021).
• Nurfadzilah Yahaya, Book Review. Gramophones, Paper Money, and Brimmed Hats: Sharia under Colonial Rule. Modern Things on Trial: Islam's Global and Material Reformation in the Age of Rida, 1865–1935, by Leor Halevi, [Abstract], 46 Law & Social Inquiry 1275-1280 (2021).
• Robin Knauer Maril, Religiously Motivated Conduct and the Reasonable Accommodation Requirement under Title VII: A New Framework for Analysis, 66 Villanova Law Review 731-764 (2021).

11th Circuit Rejects Preacher's Challenge To Campus Permit Requirement

In Keister v. Bell, (11th Cir., March 25, 2022), the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. The court concluded that the sidewalk was a limited public forum, even if it was technically owned by the city rather than the University. Thus the University could impose reasonable, viewpoint neutral restrictions. It also concluded that the exception for "casual ... activities" was not unconstitutionally vague and that the University's advance notice requirement was constitutional.

Iowa Adopts IHRA Definition Of Antisemitism

On March 23, Iowa Governor Kim Reynolds signed HF 2220 (full text) which provides that in the enforcement of state anti-discrimination laws, in determining whether an act was undertaken with antisemitic intent, the state shall take into consideration the definition of antisemitism adopted in 2016 by the International Holocaust Remembrance Alliance.

Governor Reynolds also signed HF2373 (full text) which expanded the definition of "company" in the state's Israel Anti-boycott law.

KCRG News reported on the governor's actions.

No Qualified Immunity For Requiring Patient To Attend Religious Service

In Erie v. Hunter, (MD LA, March 23, 2022), a Louisiana federal district court rejected a qualified immunity defense raised by a psychiatric aide employed by a state mental health facility.  Plaintiff, who had been civilly committed to the facility, contended that he was forced to attend a Christian religious service. He sued for damages, alleging an Establishment Clause violation. Defendant argued that she was the only aide on the ward and could not leave any patient in their room with no one on duty.  Therefore she was faced with the choice of requiring plaintiff to attend or prohibiting all patients on the ward from attending. The court said in part:

Defendant contends that she exercised "fair and reasonable judgment in ensuring the safety and security of the residents under her care while also allowing those residents who wish to attend the service to do so."...

This argument fails on multiple levels. First, the "clearly established" prong of the qualified immunity analysis does not measure the reasonableness of a defendant's actions against the circumstances presented; rather, it measures the reasonableness of the defendant's actions against the "state of the law" at the time the defendant acted....

Second, assuming for present purposes that Defendant only had two options available to her, she nonetheless chose the option that favored religion.... Ultimately, whether Defendant's choice to force Plaintiffs attendance at the religious service violated the Establishment Clause's guarantee of religious neutrality will turn on whether she acted with the ostensible and predominant purpose of advancing religion." ...

[W]hile Defendant's motive/intent may ultimately bear on the outcome of Plaintiffs Establishment Clause claims—particularly if those motives are consistent with the state's interest in maintaining safety of all ELMHS residents—such issues cannot be determined from the allegations of Plaintiffs complaint and require factual development through discovery.

[Thanks to Glenn Katon for the lead.]

Supreme Court Stays District Court's Ban On Navy Applying Vaccine Mandate To SEALs With Religious Objections

Yesterday in Austin v. U.S. Navy Seals 1-26, (Sup.Ct., March 25, 2022), in a case on its shadow docket, the U.S. Supreme Court by a vote of 6-3 stayed a Texas district court's order that barred the Navy from considering the COVID vaccination status of 35 service members in making deployment, assignment and operational decisions. The service members all have religious objections to the vaccines. The Court's stay remains in effect while appeals to the 5th Circuit and, subsequently if necessary, to the Supreme Court are pending. The stay was granted through an unsigned one-paragraph order.  However, Justice Kavanaugh filed a concurring opinion, saying in part:

[T]he District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. The Court relied on the Religious Freedom Restoration Act... But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.

Justice Thomas dissented without opinion.  Justice Alito, joined by Justice Gorsuch, filed a dissenting opinion, which concluded that the Navy had not satisfied the requirements of RFRA or the 1st Amendment.  However, the opinion would grant limited relief to the Navy while appeals are pending.  The opinion said in part:

While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision making. Granting a substantial measure of deference to the Navy, I would limit the [district court's] order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members.

NBC News reports on the decision. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Michigan City Violated RLUIPA In Applying Special Requirements On Places Of Worship

In United States v. City of Troy, (ED MI, March 18, 2022), a Michigan federal district court enjoined the city of Troy, Michigan from enforcing its zoning ordinance that imposes stricter setback and parking standards on places of worship than it does on non-religious uses in the same zoning district. The Zoning Board of Appeal refused to grant a variance from these requirements to the Islamic Adam Community Center. The court held that the city had violated the "equal terms" provisions of RLUIPA, saying in part:

While it may be true that places of worship do cause some of the negative impacts to which Troy refers—a high number of visitors, traffic influxes during short periods of time, safety considerations due to increased traffic, and nuisances such as increased noise, light, or exhaust fumes—Troy fails to provide evidence as to how exactly these concerns are unique with respect to places of worship and not similar institutions such as schools or banquet halls.

The court also concluded that the city had violated the "substantial burden" provisions of RLUIPA.  [Thanks to John Kulesz for the lead.]

DHS Issues New Interim Final Rule On Asylum Application Procedures

Yesterday, in a 512-page Release (full text), the Department of Homeland Security adopted an Interim Final Rule (IFR) on procedures for deciding on applications for asylum. It summarized the new rule in part as follows:

The principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and fairness of the process by which noncitizens who cross the border without appropriate documentation are either removed or, if eligible, granted protection. The IFR accomplishes this purpose both by instituting a new process for resolving the cases of noncitizens who have been found to have a credible fear of persecution or torture and by facilitating the use of expedited removal for more of those who are eligible, and especially for populations whose detention presents particular challenges.

Suit Says Border Agents Questioned Muslims About Their Religious Practices

Suit was filed yesterday in a California federal district court by three Muslim Americans who claim that they were asked religiously intrusive questions by U.S. Customs and Border Protection agents upon their return from international travel. Among the questions were: “How often do you pray?” “Do you attend mosque?” “Which mosque do you attend?” “Are you Sunni or Shi’a?”  The complaint (full text) in Kariye v. Mayorkas, (CD CA, filed 3/24/2022), contends in part:

Religious questioning such as this violates the U.S. Constitution. It furthers no valid—let alone compelling—government interest, and it is an affront to the First Amendment freedoms of religion and association. Moreover, because Defendants specifically target Muslim Americans for such questioning, they also violate the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Just as border officers may not single out Christian Americans to ask what denomination they are, which church they attend, and how regularly they pray, singling out Muslim Americans for similar questions is unconstitutional....

 This practice also violates the Religious Freedom Restoration Act.

 Wall Street Journal reports on the lawsuit.

Supreme Court Says Pastor Should Be Allowed To Pray Audibly And Lay Hands On Prisoner Being Executed

In Ramirez v. Collier, (Sup.Ct., March 24, 2022), the U.S. Supreme court in n 8-1 decision held that a death row prisoner was likely to succeed in his RLUIPA lawsuit challenging limits on his pastor's activities in the execution chamber.  The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him. Chief Justice Roberts majority opinion said in part:

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency.... But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests....

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” ... But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear...

Respondents’ categorical ban on religious touch in the execution chamber fares no better.... Under Texas’s current protocol, spiritual advisors stand just three feet from the gurney in the execution chamber.... A security escort is posted nearby, ready to intervene if anything goes awry.... We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk.

Justices Sotomayor and Kavanaugh each filed a concurring opinion.  Justice Thomas filed a 23-page dissent, saying in part:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

CNN reports on the decision.

Idaho Governor Signs A Heartbeat Abortion Ban

Yesterday, Idaho Governor Brad Little signed Senate Bill 1309, the Fetal Heartbeat Preborn Child Protection Act (full text). While news media report that the law is modeled on Texas SB8, there are differences between the two laws. Like the Texas law, SB 1309 prohibits abortions after a fetal heartbeat can be detected-- generally 6 weeks, and provides for private enforcement. However the Idaho law has an exception for rape or incest (if reported to law enforcement authorities) or for medical emergencies. The Texas law only excepts medical emergency. Under the Idaho law, a private enforcement action may be brought only by the father, grandparent, sibling, aunt or uncle of the pre-born child. They may sue for actual damages plus statutory damages of $20,000. Under the Texas law, anyone (other than a state or local official) may sue. Under the Idaho law, criminal penalties and license suspensions for health care professionals who violate the law are triggered "thirty (30) days following the issuance of the judgment in any United States appellate court case in which the appellate court upholds a restriction or ban on abortion for a pre-born child because a detectable heartbeat is present on the grounds that such restriction or ban does not violate the United States constitution."

Mandatory LGBTQ Anti-Discrimination Training Did Not Violate Title VII

In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, (WD NY, Feb. 16, 2022), a New York federal district court dismissed Title VII and state law religious discrimination claims brought by Raymond Zdunski, an account clerk at the Board of Cooperative Educational Services.  BOCES required all of its employees to attend LGBTQ anti-discrimination training after one of its employees requested accommodation for gender transition.  Zdunski refused, contending that the training was aimed at changing his religious beliefs on gender and sexuality and that attending would violate his religious beliefs. He was fired for insubordination. The court said in part:

Mr. Zdunski has not presented any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner....

Here, Mr. Zdunski's proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer's business operations. BOCES is bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain "an environment free of discrimination and harassment." See N.Y. Educ. Law Tit. 1 Art. 2 §§ 10, 13. Allowing Mr. Zdunski's requested accommodation to forego anti-discrimination trainings would have put his employer in the position of violating the training requirements set forth in DASA. An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.

No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

U.S. Imposes New Sanctions On China For Repression Of Ethnic And Religious Minorities

On Monday, Secretary of State Anthony Blinken announced (full text of press statement) that the U.S. is imposing new sanctions on Chinese officials for human rights violations. He said in part:

The Department of State is taking action against PRC officials for their involvement in repressive acts against members of ethnic and religious minority groups and religious and spiritual practitioners inside and outside of China’s borders, including within the United States....

Today’s action imposes visa restrictions on PRC officials who are believed to be responsible for, or complicit in, policies or actions aimed at repressing religious and spiritual practitioners, members of ethnic minority groups, dissidents, human rights defenders, journalists, labor organizers, civil society organizers, and peaceful protestors in China and beyond....

We call on the PRC government to end its ongoing genocide and crimes against humanity in Xinjiang, repressive policies in Tibet, crackdown on fundamental freedoms in Hong Kong, and human rights violations and abuses, including violations of religious freedom, elsewhere in the country.

CBS News reports on the State Department's action.

Indiana and Utah Governors Veto Bans Of Transgender Females On Sports Teams

Indiana Governor Eric Holcomb on Monday vetoed HEA 1041 (full text) which bans transgender females from competing on female interscholastic athletic teams.  In his veto letter (full text), the Governor said in part:

[T]he presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal.

AP reports on the governor's action.

Meanwhile, yesterday Utah Governor Spencer Cox vetoed H.B.11 (full text) which similarly prohibited transgender females from competing on female interscholastic athletic teams. The bill provided that if this ban was struck down by the courts, a School Activity Eligibility Commission would be created to determine the eligibility for gender-specific teams of students who are undergoing gender transition. The Commission would establish a baseline range of physical characteristics for different sports and ages to use in making its determinations.

Governor Cox issued a lengthy and detailed veto letter (full text), which reads in part:

Because the bill was substantially changed in the final hours of the legislative session with no public input and in a way that will likely bankrupt the Utah High School Athletic Association and result in millions of dollars in legal fees for local school districts with no state protection, and for several other reasons below, I have chosen to veto this bill....

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.

AP reports on the governor's action, and reports that legislative leaders plan to reconvene on Friday to consider a veto override.  The Governor has issued a Proclamation calling a special session of the legislature for Friday to consider an indemnification provision for the Utah High School Athletic Association and local school districts that will be sued.

UPDATE: As reported by AP, on March 25, the Utah legislature overrode the governor's veto.

UPDATE: As reported by WYFI, on May 24 the Indiana legislature overrode the governor's veto. The ACLU has filed suit challenging the law.

U.S. Labels Burmese Military's Treatment Of Rohingya As Genocide

In a speech (full text) yesterday at the United States Holocaust Memorial Museum, Secretary of State Anthony Blinken announced that the United States has concluded that Burma's actions against the Rohingya constitute genocide.  He said in part:

One of my responsibilities as Secretary is determining, on behalf of the United States, whether atrocities have been committed.  It’s an immense responsibility that I take very seriously, particularly given my family’s history.

Beyond the Holocaust, the United States has concluded that genocide was committed seven times.  Today marks the eighth, as I have determined that members of the Burmese military committed genocide and crimes against humanity against Rohingya.

In Settlement, Michigan Allows Catholic Charities To Refuse Child Placements With Same-Sex Or Unmarried Couples

In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (ED MI, March 21, 2022), a Michigan federal district court approved a settlement agreement under which the state of Michigan will allow Catholic Charities, operating under contracts with the state, to refuse to place children for adoption or foster care with same-sex or unmarried couples and refuse to conduct home evaluations for same-sex or unmarried couples. The parties' Agreement says in part:

[A]s a result of the Supreme Court’s decision in Fulton v. City of Philadelphia, 593 U.S. ___ (2021), the Parties agree that Plaintiff would likely prevail on Count V (Free Exercise) of the Complaint.

The state also agreed to pay plaintiffs' attorneys' fees in the amount of $250,000. ADF issued a press release announcing the settlement.

Mahr Did Not Set Upper Limit Of Amounts Awardable To Wife In Divorce

In Parbeen v. Bari, (FL App., March 16, 2022), a Florida state appellate court held that a traditional Islamic prenuptial agreement-- a Mahr-- in setting an amount payable upon divorce did not eliminate the wife's right to temporary support, alimony, equitable distribution of property and attorneys' fees under Florida law. While the Mahr's secular terms are enforceable under Florida contract law, the Mahr did not set the maximum amount payable to the wife. [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

DC Minor Consent Law Violates Parents' Free Exercise Rights

In Booth v. Bowser, (D DC, March 18, 2022), a D.C. federal district court granted a preliminary injunction on free exercise grounds against the Minor Consent for Vaccinations Act Amendment of 2020 which allows minors who are at least 11 years old to consent to vaccinations without parental approval. The court concluded that the Act burdens religious practice, explaining:

If a minor’s parent has filed a religious exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to leave blank part 3 of the Certificate for students whose parents filed a medical exemption.

Washington Post reports on the decision.

Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.

Bidens Extend Greetings For Nowruz

Yesterday, President Biden and Jill Biden issued a statement extending New Years greetings for Nowruz. The Statement (full text) reads in part:

Jill and I extend our best wishes to all who are celebrating Nowruz in the United States and around the world today — including in Iran and across the Middle East, in Central and South Asia, in the Caucuses, and in Europe....

That spirit of new beginnings and the joy of Nowruz is reflected in our own Haft-Sin table at the White House, representing our hopes for the new year.

Certiorari Denied In Dispute Over Anti-Discrimination Exemption for Religious Employers

The U.S. Supreme Court today in Seattle's Union Gospel Mission v. Woods, (certiorari denied, March 21, 2022) denied review, but Justice Alito, joined by Justice Thomas, filed an opinion saying in part:

The Washington Supreme Court’s decision may warrant our review in the future, but threshold issues would make it difficult for us to review this case in this posture.

At issue was the Mission's refusal on religious grounds to hire a bisexual male who was in a same-sex relationship as a staff attorney for its legal clinic.  Justice Alito said in part:

Because of such federal statutory exemptions and their state analogs, we have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required....

But in this case the confrontation may be inevitable, as it involves an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views. The Washington Supreme Court expressly declined to apply its state employment law exemption for religious entities to this dispute. Instead, it held that if that state exemption applied to employment decisions beyond those involving church ministers, such an exemption would violate the Washington State Constitution’s protection for other individual rights and could become a “license to discriminate.”

USCIRF Warns of Religious Oppression By Russians In Ukraine

Last week, the U.S. Commission on International Religious Freedom issued a press release warning that Russia will likely target religious communities across Ukraine with violence and oppression. The release reads in part:

The Russian government uses distortions of religious history to support its claim that Ukrainians have no independent ethno-religious identity or state tradition,” said USCIRF Commissioner James W. Carr. “In 2019, the Ecumenical Patriarch of Constantinople recognized an independent Orthodox Church of Ukraine, allowing many parishes previously under the jurisdiction of Moscow to sever those ties in a move that infuriated Russian nationalist sentiments. These parishes and their leadership are in jeopardy if Russian control expands.”...

“In the areas of Ukraine already occupied by Russia in 2014, we have seen the Russian government use baseless charges of religious extremism and terrorism to silence dissent, justify endless raids and mass arrests, and close religious institutions that do not conform to its narrow interpretation of ‘traditional’ religion,” said USCIRF Commissioner Khizr Khan. “Indigenous Crimean Tatar Muslims—who oppose the Russian occupation of their homeland—are routinely charged with terrorism based on their ethno-religious identity rather than any substantive evidence. Many of these individuals receive prison sentences of up to 20 years. 

New York Releases New Proposed Curriculum Rules For Nonpublic Schools

On March 10, the New York Education Department announced the release of the third version of Proposed Regulations (full text) to assure substantially equivalent instruction for non-public school students. According to Hamodia:

These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).

Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department....

Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.

Churches Can Move Ahead On Damage Claims Against County For Its COVID Orders

In Calvary Chapel San Jose v. Cody, (ND CA, March 18, 2022), two churches and their pastors sued the state of California and Santa Clara County over their COVID orders. As explained by the court:

Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations....

[Plaintiffs alleged] that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church’s bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California’s Bane Act.

The court granted the state of California's motion to dismiss, finding that plaintiffs' claims for injunctive and declaratory relief are moot, and that any claim for damages is barred by the 11th Amendment. However damage claims against the county were allowed to move forward. The court concluded that plaintiffs had adequately plead free exercise, freedom of assembly, equal protection, and excessive fines claims.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, The Role of Shari‘a in the Legal System of Pakistan, (January 16, 2022).
• Donna M. Gitter, First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold That the Free Exercise Clause Does Not Require Religious Exemptions, 71 Am. U. L. Rev. (2022, Forthcoming).
• Robert K. Vischer, Christian Nationalism and the Rule of Law, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 22-18 (2022).
• Gregory C. Sisk & Michael Heise, Where to Place the “Nones” in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court, (St. John's Law Review , Vol. 96, No. 3, 2022).
• Patricia Wiater, Not Who but What Can Hold Human Rights? Companies and Nature as Subjects of Human Rights Protection, (December 18, 2021).
• Emad H. Atiq, Reasonable Moral Doubt, (97 N.Y.U. Law Review (Forthcoming 2022)).
• Rachel Tomlinson Dick, Play Like A Girl: Bostock, Title IX's Promise, and the Case for Transgender Inclusion in Sports, 101:1 Neb. L. Rev. (2022 Forthcoming)).

From SmartCILP and elsewhere:

• Brett A. Geier, Funding God's Schools—A Legal Analysis of Appropriating Public Dollars to Parochial Schools: Does Michigan's Latest Legislation Violate the Separation of Church and State?, [Abstract], 49 Journal of Law & Education 285-338 (2020).
• Journal of Law & Religion, Volume 37, Issue 1, January 2022.

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

New Washington State Law Protects Abortion Rights

As reported by MyNorthwest, on Thursday, Washington Governor Jay Inslee signed HB1851 (full text) protecting the right to abortion before viability of the fetus or to protect the life or health of the pregnant individual.  It provides in part:

The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

The new law also provides in part in its statement of policy:

Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care.

Consistent with this, references to "woman" in the state's abortion laws were changed to "pregnant individual". 

New Ohio Law Allows Religious Apparel For Student Athletes

On Feb. 28, Ohio Governor Mike DeWine signed into law Senate Bill 181 (full text) which allows students to wear religious apparel while competing in inter-scholastic athletic competitions or extracurricular activities.  A limited exception allows regulation where the apparel would create a legitimate danger. In such cases, reasonable accommodation is required. Don Byrd has additional background on the law.